Romero–perez v. U.S. Dep't of Justice
| Decision Date | 28 April 2011 |
| Docket Number | Civil No. 10–1441 SEC. |
| Parties | Sandra Haydee ROMERO–PEREZ, Plaintiffv.U.S. DEPARTMENT OF JUSTICE, Federal Bureau of Prisons, et al., Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
OPINION TEXT STARTS HERE
Israel Melendez–Torres, San Juan, PR, for Plaintiff.Lisa E. Bhatia–Gautier, United States Attorneys Office, San Juan, PR, for Defendant.
Pending before this Court is Defendants United States Department of Justice and Federal Bureau of Prisons' (“BOP”) (collectively “Defendants”) Motion for Summary Judgment (Dockets 16 & 17), and Plaintiff Sandra Haydee Romero–Perez's (“Plaintiff”) opposition thereto (Dockets 20 & 28). After reviewing the filings, and the applicable law, Defendants' motion for summary judgment is GRANTED.
On May 21, 2010, Plaintiff filed the present suit against Defendant and Lt. Daniel Rivera (“Rivera”) under Title VII, alleging sexual harassment at the workplace. In the complaint, Plaintiff, a correctional counselor at the Metropolitan Detention Center, Guaynabo, Puerto Rico (“MDC Guaynabo”), alleges that she was sexually harassed by Rivera. On December 7, 2010, Defendants moved for summary judgment, and Plaintiff timely opposed. On April 11, 2011, default was entered against Rivera for failure to answer or otherwise plead. Docket # 26.
The Court may grant a motion for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1st Cir.2005). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir.1994). At this stage, the court examines the record in the “light most favorable to the nonmovant,” and indulges all “reasonable inferences in that party's favor.” Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994).
Once the movant has averred that there is an absence of evidence to support the nonmoving party's case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citations omitted). “A factual issue is ‘genuine’ if ‘it may reasonably be resolved in favor of either party and, therefore, requires the finder of fact to make ‘a choice between the parties' differing versions of the truth at trial.’ ” DePoutot v. Raffaelly, 424 F.3d 112, 116 (1st Cir.2005)(quoting Garside, 895 F.2d at 48 (1st Cir.1990)); see also SEC v. Ficken, 546 F.3d 45, 51 (1st Cir.2008).
In order to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 407 F.3d 11, 15 (1st Cir.2005) (citing Medina–Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). Nor will “effusive rhetoric” and “optimistic surmise” suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). Once the party moving for summary judgment has established an absence of material facts in dispute, and that he or she is entitled to judgment as a matter of law, the “party opposing summary judgment must present definite, competent evidence to rebut the motion.” Méndez–Laboy v. Abbott Lab., 424 F.3d 35, 37 (1st Cir.2005) (quoting from Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994)). Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (); Medina–Munoz, 896 F.2d at 8 (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) ( that “[t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.”).
The relevant uncontested facts are as follows. Plaintiff is an employee at the BOP since November 23, 1993. SUF ¶ 7. She currently serves as a Correctional Counselor at the MDC Guaynabo. Id. When she started her employment at the BOP, Plaintiff was provided with the Standards of Employee Conduct; the Acknowledgment of Receipt was signed by Plaintiff on April 18, 2007. Id. at 8. The BOP has adopted, disseminated, enforced, and taught a comprehensive Sexual Harassment prevention policy. Id. at 34. Moreover, the Agency's Discrimination and Retaliation Complaints Processing policy in effect at the time strictly forbids retaliation. Id. Additionally, both Plaintiff and Rivera attended yearly Correctional Training Annual–BOP trainings which emphasize the process to report sexual harassment. Id. at 35. Also, the Agency's Standards of Employee Conduct, P.S. 3420.09, of which Plaintiff was aware, mandates reporting sexual harassment. Id. at 36.
On May 19, 2009, Plaintiff filed a Formal Grievance with the BOP. Id. at 1. 1 According to Plaintiff, on said date, at approximately 7:30 a.m., she entered Housing Unit 3–C and observed Rivera sitting in the officer's station which she utilizes as a work station. Id. at 9. Plaintiff alleges that when she entered the office to store her purse, Rivera was sitting with his legs spread open. Id. Plaintiff further avers that Rivera had his left hand on his upper thigh, his right hand was rubbing his crotch area, and he asked her “What's wrong, you don't like this?” Id. She contends that she responded by stating “this is going to end, you are not going to do this anymore.” Id. Plaintiff explained that such statement meant that she was going to report his conduct to her supervisor, Unit Manager Angel L. Morales, Jr. and to the Union President, Jorge L. Rivera. Id. Although Plaintiff alleges that witnesses were present, she indicated she does not know whether they witnessed her interactions with Rivera. Id.
Plaintiff further alleged that on May 16, 2009, she passed Rivera in the 3–C Housing Unit and Rivera's arm brushed her shoulder. Id. at 10. She indicated that she did not believe Rivera's brushing of her shoulder was an assault on her person, but asserts that his actions were an attempt to sexually harass her. Id. Plaintiff admits she did not report this alleged incident to any management official, her supervisor, or other staff member. Id.
Based on Plaintiff's allegations, the Agency responded by convening and conducting a Threat Assessment, and referring the matter to the Office of Internal Affairs in Washington, D.C. for investigation. Id. at 11. In a sworn statement provided to the Internal Affairs investigator, Rivera indicated that on May 19, 2009, he was seated in the Officer's Station in Unit 3–C reviewing and signing log books when Plaintiff entered to store her purse. Id. at 12. Rivera indicated that, when Plaintiff placed her purse in the desk, she stated “these inmate bitches, seem like they hear through their pussies.” Id. According to Rivera, he told Plaintiff that she should be professional and he could not believe the words coming out of her mouth, and Plaintiff responded by stating: “Deal with that.” Id. Rivera indicated that he did not interact with Plaintiff for the remainder of his shift that day. Id. at 13. Another employee who was at that location was not close enough to hear the conversation between Rivera and Plaintiff. Id.2 He denied ever making any sexually explicit comments or gestures towards Plaintiff, including placing his hands on her or rubbing his crotch, and stated that he has always acted in a professional manner. Id.
Pursuant to Rivera's statement, on May 16, 2009, he was assigned to the morning shift as Activities Lieutenant from 6:00 a.m. to 2:30 p.m. Id. at 15. He stated that that, at approximately 8:45 a.m., he was exiting Housing Unit 3–C when he noticed Plaintiff entered the Unit with her purse. Id. Rivera indicated that he went to the Lieutenant's Office to check the Unit Roster, which revealed Plaintiff was scheduled to work from 7:00 a.m. to 3:30 p.m. Id. He then sent an e-mail to Unit Manager Angel Morales, Plaintiff's supervisor, informing him about the time when Plaintiff arrived at work. Id.
According to Rivera, on May 20, 2009, prior to conducting the Threat Assessment, he asked Morales whether he had informed Plaintiff about his e-mail reporting the time of her arrival on May 16, 2009. Id. at 15. Morales told Rivera that he had told Plaintiff about Rivera's e-mail. Id. As a result, Rivera believed Plaintiff was retaliating against him for reporting her tardiness. Id. He offered to take a polygraph examination. Id.
Based on Rivera's affidavit, the OIA Investigator conducted a follow-up interview with Plaintiff on August 28, 2009. Id. at 16. In her follow-up interview, Plaintiff alleges that, on May 16, 2009, she first encountered Rivera while entering the sallyport of the housing unit. Id. Plaintiff indicated that, on that same date, she exited the unit and did not return until 10:00 a.m., when she encountered Rivera sitting at the desk with his legs wide open rubbing his crotch area. Id. In contrast, in her first Affidavit, Plaintiff's only allegation regarding Rivera's conduct on May 16 was the allegation that he brushed her shoulder with his arm. Id. In fact, Plaintiff...
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